Page 152 - GSTL_18th June 2020_Vol 37_Part 3

366 GST LAW TIMES [ Vol. 37
GSTR-3B is not a return u/s. 39, ibid. Hence, the assessment made
u/s. 62, ibid fails and requires to be set aside.
(15) Appellant submits that the assessment u/s. 62, ibid shall be made
after serving of a valid notice u/s. 46, ibid in form GSTR-3A. Similar
to the Section 62 of CGST Act, 2017, the Section 46, ibid also refers to
the returns to be filed u/s. 39, ibid i.e. GSTR-3 and not the GSTR-3B
returns thereby there is no jurisdiction to serve the notice u/s. 46,
ibid for failure in filing of the GSTR-3B returns. The submissions
made supra as to what constitutes the return u/s. 39 would equally
apply here and Appellant would like to reiterate the same.
In Re : Notice in GSTR-3A (u/s. 46, ibid) was not issued prior to the
assessment u/s. 62, ibid :
(16) Without prejudice to the above, Appellant submits the Ld. Adjudi-
cating authority has made the assessment u/s. 62, ibid without first
serving the notice u/s. 46, ibid. Hence, the impugned assessment
fails on this count also.
In Re : Penalty u/s. 122 is not imposable :
(17) Appellant submits the penalty is not imposable as there was no of-
fense committed that attracts penal action u/s. 122, CGST Act, 2017.
The fact that Appellant has been filing the GSTR-1 returns regularly
and also remitting the tax dues wherever possible despite of the
huge cash crunch in the business.
(18) Appellant craves leave to alter, add to and/or amend the aforesaid
grounds.
(19) Appellant wish to be personally heard before any decision is taken
in this matter.
Discussion :
10. Perused the grounds of appeal Vis-a-Vis the impugned orders
passed by the assessing authority i.e. Assistant Commissioner (ST), Patamata
Circle, No. II Division.
11. The fundamental objection of it against the orders is that the non-
filing of the returns in Form GSTR-3B is actually due to the financial crunch and
inability to discharge the tax liability by it, and no suppression of outward sup-
plies of services is involved. The appellant further explained that the main reason
for the delayed/Non-payment of the admitted GST is due to huge delay in the
realisation of the proceeds of its supply of services due from the clients. The ideal
average time taken for the realisation is 90 days from the date of raising the in-
voice, whereas the appellant has to pay the salaries to the security personnel on
monthly basis and certain clients allow raising invoice only after the payment of
salaries to them. The interest/finance cost on the overheads (mainly salaries to
the security personnel) is almost shelling out the margins of it. Adding to the
above difficulties, the GST at the rate of 18% has to be paid immediately on rais-
ing of the invoices, which is becoming an added burden to it. All these led to
huge working capital crisis, ultimately leading to cash crunch in its hands.
12. The appellant further put forth that in spite of the above stated cash
crunch, it has always prioritized the discharging the tax liability over business
needs and frequently deposited cash into its electronic cash ledger as and when
the consideration is received from its recipients. Detailing about the above cir-
cumstances, the appellant strongly contended that there is no reason except cash
crunch for its failure to file the returns in Form GSTR-3B. Hence, argued that

GST LAW TIMES  18th June 2020  152